Contact

I have started this family law blog to provide up-to-date and accurate information concerning divorce, separation, custody, child support and other family law issues.

I have been a Rochester, New York, family law lawyer since 1996, helping people in Rochester, Monroe County, and nearby counties. I counsel my clients on separation, divorce, custody, custodial relocation, child support, adoption, parental kidnapping, pre-marital agreements, post-marital agreements, and equitable distribution of property issues, such as business interests, stock options, professional licenses, pensions, and profit-sharing plans.

In addition, I handle collaborative family law cases which allow for amicable resolution of family disputes.

My Website

New York Law Updates

Meta

Grounds for Divorce Revisited

I have previously discussed New York’s grounds for divorce and lack of no-fault divorce. While the cases have traditionally stated that the longer is the duration of the marriage, the higher is the burden of plaintiff with respect to the grounds such as cruel and inhuman treatment. Recently, I came across the case that left me surprised despite handling many divorce cases here in Rochester over the last 14 years.

In S.K. v. I.K., 2010 N.Y. Slip. Op. 50556(U) (Sup. Ct. Nassau Co. 2010), the plaintiff husband was seeking a divorce on the grounds of cruel and inhuman treatment after 29 years of marriage. One of the grounds alleged was cruel and inhuman treatment. Specifically, the husband testified that wife was extremely physically abusive, and that in August of 2005, she attempted to attack him with a Japanese sword. Husband testified that wife could have killed him if not for the parties’ daughter’s intervention. He testified that the sharp edge of the sword came within a few inches of his chest. He testified that wife came to the marital residence around 1:00 p.m., and when husband questioned her as to where she had been, wife refused to answer, and stated that she did not have to tell him. He testified that wife began acting “crazy” and began yelling and screaming at him. She then came after him waving her hands and pounding on his chest, striking him repeatedly. He testified that at the start of the confrontation, the parties were in the kitchen, but that upon escalation of the incident, he ran to the master bedroom, and fearing for his safety, he locked himself in the bedroom for his protection. He testified that wife began pounding on the door and kicking it with her feet, while screaming and insisting that he open the door. Husband testified that he heard the parties’ daughter come out of her bedroom, and that she was pleading for the wife to stop. Fearing that wife would hurt their daughter, he came out of the bedroom and walked towards the kitchen where the wife was holding the large Japanese sword, while their daughter was trying to block wife and stop her from moving forward. Husband testified that he observed the wife pushing their daughter back in an attempt to reach the bedroom, but when she saw husband in the kitchen, she began to charge at him and waive the sword through the sides of their daughter’s body. He testified that the wife became frantic in her attempts to reach him and almost did hit him on the head and parts of his chest. He testified that he slowly retreated back in the bedroom and locked himself in for the night, fearing that the wife would come back and hurt him in the middle of the night. He did not call the police at any point in this incident, nor did he testify as to any actual injuries inflicted by the wife upon him during the course of the incident.

The parties’ children testified and corroborated the husband’s testimony. The wife denied the allegations of Husband with respect to the incident involving the Japanese sword.

The trial court, after hearing all of the testimony involving the Japanese sword, held that the husband did not sustain his burden of proof with respect to physical or mental injuries. The testimony was that no one sustained any physical injuries, neither party was seen at a hospital or by any doctor. The court stated that the husband never contacted the police nor did he seek protection from the Family Court, and he testified that he continuously pleaded with the wife to return to the marital residence to work on their marriage.

Husband provided no testimony from any physicians nor did he produce any medical records. Accordingly, the trial court held that the husband failed to establish a prima facie showing of cruel and inhuman treatment by the wife, and dismissed that cause of action.

What is surprising about this case is that there was corroborated testimony that the wife engaged in conduct that would have likely resulted in a serious injury or death of the husband, were it not interrupted by the parties’ daughter. If attempting to kill or seriously injure your spouse with a sword is not cruel and inhuman treatment, it is hard to conceve of the conduct that would actually amount to cruel and inhuman treatment.

In my view, the cases such as S.K. continue to reiterate the need for New York to pass no-fault divorce legislation. At the same time, the husband’s divorce lawyer should have presented testimony with respect to how this attack affected the husband. It should have been possible to have the husband evaluated by a psychologist and have psychologist’s testimony presented to the court. As a postscript, while the trial court did not grant divorce on the grounds of cruel and inhuman treatment, the divorce was ultimately granted on the grounds of abandonment because the wife moved for a period of time to Virginia and said move was unjustified and without an intention to return.

The irony of all of the above is that this case is not unique. While the facts in S.K. are shocking, there are many marriages that have ended many years ago but cannot be legally dissolved. Until New York does something about its grounds requirements, similar cases will continue to take place.